By Mairaj Syed
My book Coercion and Responsibility in Islam seeks to organize the insights of the four conceptual approaches in the previous blog post into a coherent structure. It proposes an analytical framework that identifies and tracks the interactions of the key features that explain the content and historical development of concepts within technical traditions of thought when two historical and institutional conditions are met:
- The existence of multiple intellectual schools that generate and constrain the intellectual production of authors in a given time period
- And the presence of competition between these schools.
Though I developed this framework to explain the character of intellectual production in classical Islamic law and theology, I think it is applicable to any culture and time-period that meets the two empirical conditions listed above. I call this framework the constraint and contingency model for tradition-based rationality.
By constraint I mean those features of an author’s context and intellectual practice that restrain and delimit the justifications she gives for the positions she takes. There are two such constraints: those that stem from belonging to a school (internal), and those that stem from competition with other schools (external). These constraints capture the social and logical aspects of involvement in a discursive tradition. They are logical because much of their force derives from the logical relationships instantiated in taking a position and offering reasons for it. They are social because these assertions and their justifications take place between human beings that are trained to keep score of the positions and justifications undertaken by the agents in a discourse and track the logical relationships between them. A third type of constraint, not tied to a specific context, emerges from the combination of the discipline to which an author belongs and the specific issue she is investigating (domain-specific constraints). The contingency feature of the model captures aspects of an author’s context that fall outside the scope of the three types of constraints above, and yet influence her intellectual production. I describe them as contingent because these features do not immediately stem from the discursive needs of tradition-based reasoning.
The internal constraints refer, at their most basic level, to the positions the author is constrained to adopt because she belongs to a given intellectual community. For example, a Ḥanafī author must adopt the legal position that coercion, no matter how severe, does not invalidate a pronouncement of divorce, just as a Muʿtazilī must hold that God does not ever lie because God is morally constrained from doing so. This inheritance imposes at a minimum, three discursive burdens. The school-bound jurist must be able to demonstrate the school’s entitlement to the positions it espouses. She must defend both the positions offered in the school against criticism. She must also demonstrate the coherence between the school’s positions themselves. While the justifications and arguments given for these positions may change and develop over time, as can the substantive meaning of the position itself, rarely may an author explicitly disavow them without risking her membership in the school.
External constraints stem from the positions and arguments proffered by authors belonging to competing schools or shared between them. These external or shared commitments influence the way that scholars will justify the inherited positions of their school. Tradition-bound scholars will be keenly aware of how the reasons that they give for their own positions may inadvertently commit them to a position of their opponents. In this way, positions external to the school in question play a role in the unfolding practice of giving reasons. For example, the Shāfiʿīs held that coercion invalidates a pronouncement of divorce because it vitiates the coerced pronouncer’s intention. The Ḥanafīs cited this same principle to ask why then did Shāfiʿīs consider the divorce pronounced in jest as still valid, when the jester similarly did not intend the divorce? The rationality of a tradition is therefore partly explained by the ecology of competing positions associated with other schools and the justifications offered for them.
The third set of features that explain tradition-bound rationality are the various contingent and accidental features of a given context, outside those that involve the social and logical space of reason-giving. For example, the Ḥanafī adoption of the position that coercion does not invalidate the pronouncement of some speech acts, such as divorce, was an influential constraint on classical Ḥanafī coercion jurisprudence. Yet, the Ḥanafīs inherited this position through their fidelity to the positions of early Kufan authorities such as Ibrāhīm al-Nakhaʿī (d. 96/714). Had a different position been taken by these early authorities, the Ḥanafī position would have reflected that inheritance, and the different starting point would have had an effect on the character of Ḥanafī coercion jurisprudence. This example, and the effect of some contingencies on a tradition’s rationality, is captured by the idea of path-dependence in evolutionary biology. In evolutionary biology, though a species may develop a feature through random chance, its very incorporation will influence the subsequent development of the species. Similarly, though there is no necessary reason for the Ḥanafīs to have adopted their peculiar position on coerced divorce, the fact of its presence influenced the subsequent development of the justifications within the school, despite its arbitrary origin.
Unlike internal and external constraints and contingencies, the final constraints are independent of specific cultures, times, and traditions. The domain specific constraints stem from a combination of a discipline and a specific problem investigated in it. By discipline I mean some technical field of study organized around a delimited subject matter, such as law, theology, philosophy, mysticism, or grammar found in more than one society. By problem, I mean those questions for which the given disciplines tried to provide systematic answers. If two scholars from different historical or cultural contexts belong to a sufficiently similar discipline and investigate a fairly similar problem, the domain specific constraints will likely produce a similar set of positions or arguments for them. For example, it is the existence of domain specific constraints that explains the structural similarities in the discussion on the issue of coerced homicide between Islamic and Anglo-American legal scholars. Both of them framed the debate as a conflict between two principles pulling in opposite directions: the equal sanctity of each person’s life allows that no preference be given to either that of the coerced or a third-party victim and the general idea that being forced to do something ought to have some kind of effect on the responsibility for the action one was coerced to do.
The very existence of domain specific constraints raises interesting questions for the field of comparative ethics and law. That scholars from different time periods and cultures, committed to contrasting overarching values (sharīʿa in the case of the Muslims and liberty in the case of the British and Americans) both defined the problem and articulated possible solutions along similar lines suggests that given the existence of a technical discourse (such as law or theology) and a sufficiently similarly defined problem addressed within that discourse (such as coerced homicide) there exist a set of moral principles (equal sanctity of life vs. coercion diminishes responsibility) that are cited both in the construction of the moral problem at hand (is the coercer or the coerced or both held responsible for homicide?) and in the proposed solutions to them. The common articulation and citation of these principles in the writings of medieval Muslims and modern Anglo-American jurists contrasts starkly with the avowed higher-order commitments that supposedly characterize their moral systems as a whole. The fact of the matter is that Anglo-American jurists did not cite liberty or freedom in either the analysis of the concrete moral problems involving coercion or in possible solutions to them. Their Muslim counterparts evince the same behavior when it comes to their commitment to the Divine origin of the law. Why is this the case? It seems that commitments to larger overarching philosophical values (such as sharīʿa and liberty) that purportedly organize smaller ethical micro-discourses have little if any functional value in actually solving a moral and ethical problem, even if it was important to civilizational identity. This being the case, the moral and ethical cultures may not be as distinctive and different as their avowed commitment to higher, broader civilizational/cultural values suggest. If this is true, then where may the ethicist and the jurist look for fruitful cross-cultural analysis? Perhaps, comparative ethical and legal analysis should focus on the practical principles invoked by jurists, moral philosophers, and judges when confronting concrete moral problems.
The constraint and contingency model is not meant to be a reductive and exhaustive account of Islamic tradition-bound rationality. Rather it tries to succinctly identify the most important features of the phenomena, describe their interrelationships, and provide some kind of explanation for their character. By performing these tasks, my hope is that the model will help scholars communicate their results and bind their disparate empirical inquiries through a common language.
As I was formulating the constraint and contingency model of tradition-bound rationality, one of the features of legal and moral reasoning that struck me as deserving of further analysis was the existence of what I term ‘mid-tier’ moral and legal principles in structuring an ethical problem and responses to it. By mid-tier principles (also called canons by other scholars), I mean those ideas that are more general than a specific normative recommendation (that act is prohibited, this transaction is valid) and more particular than a philosophical value that purports to subsume subsidiary ethical principles such as utility, freedom, dignity, or Divine voluntarism. Islamic legal and theological reasoning is littered with mid-tier premises, as is any robust moral and legal discourse. Examples from the Islamic tradition are: “actions are to be judged by intention”, “the law can only judge based on the empirically accessible”, “evil originates in privation”, and “the prayer-leader’s performance counts for that of his followers”. Despite their ubiquity, mid-tier principles have not received as much sustained attention, either in comparative ethics, or in Islamic legal studies, as I think they deserve. My next post is an initial exploration of the character of these principles in Islamic law, the institutional settings in which they are most useful, and some of the main problems historians and ethicists face in the scholarly analysis of them.
 MacIntyre locates the engine for conceptual innovation in the competition between ethical traditions. It is this specific insight that helped me locate the fact of competition between traditions as a key element in the nature of the rationality they generated for the theological and legal positions that constituted the bedrock of school. For this theme, see Alasdair C. MacIntyre, Whose justice? Which rationality? (Notre Dame, Ind.: University of Notre Dame Press, 1988).
 For a more extensive discussion of the framework, see the introduction and conclusion of my book, and the concluding paragraphs of the other chapters.
 I’m indebted to Robert Brandom’s work on the role of discursive score-keeping in his account of rationality. His most extended engagement with this theme and others is found in Robert Brandom, Making it explicit : reasoning, representing, and discursive commitment (Cambridge, Mass.: Harvard University Press, 1994). For an investigation of how his ideas are useful for intellectual historians, see David L. Marshall, “The Implications of Robert Brandom’s Inferentialism for Intellectual History,” History and Theory 52, no. 1 (2013).
 For the idea that law is path dependent, see Behnam Sadeghi, The logic of law-making in Islam : women and prayer in the legal tradition, Cambridge studies in Islamic civilization (Cambridge: Cambridge University Press, 2013), 103. He writes: “The evolution of law is path-dependent, like biological evolution, in that the prior trajectory does matter for the final outcome”.